As
filed with the Securities and Exchange Commission on June 10, 2009
Registration
No. 333-_____
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
——————————
FORM
S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
——————————
DELCATH
SYSTEMS, INC.
(Exact
name of registrant as specified in its charter)
——————————
|
Delaware
(State
or Other Jurisdiction of
Incorporation
or Organization)
|
06-1245881
(I.R.S.
Employer
Identification
No.)
|
——————————
600
Fifth Avenue, 23rd
Floor
New
York, NY 10020
(212)
489-2100
(Address,
including zip code, and telephone number,
including
area code, of Registrant’s principal executive offices)
——————————
Richard
L. Taney
Chief
Executive Officer
Delcath
Systems, Inc.
600
Fifth Avenue, 23rd
Floor
New
York, NY 10020
(212)
489-2100
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
——————————
Copies
to:
Gary
J. Simon
Hughes
Hubbard & Reed LLP
One
Battery Park Plaza
New
York, NY 10004
(212)
837-6000
——————————
Approximate
date of commencement of proposed sale to the public:
As
soon as practicable after the effective date of this registration
statement
——————————
If the
only securities being registered on this Form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box: o
If any of
the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other
than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: ý
If this
Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. ý Registration Statement
No. 333-143280.
If this
Form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this
Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act, check
the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “smaller reporting company” in Rule 12b-2 of the
Exchange Act.
|
Large
accelerated filer o
|
Accelerated
filer ý
|
|
Non-accelerated
filer o
|
Smaller
reporting company o
|
|
(Do
not check if a smaller reporting company)
|
——————————
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class of Securities
to
be Registered
|
Amount
to be
Registered
(1)
|
Proposed
Maximum
Offering
Price
Per Share
(2)
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
(3)
|
|
Common
Stock, par value $.01 per
share
(4)
|
||||
|
Warrants
to Purchase Common
Stock
|
||||
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TOTAL
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$27,966
|
100%
|
$27,966
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$1.57
|
—————
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(1)
|
Pursuant
to Rule 416 under the Securities Act, the securities being registered
hereunder include such indeterminate number of shares of common stock,
warrants to purchase shares of common stock, shares issuable upon exercise
of such warrants and such shares of common stock as may be issuable with
respect to the shares being registered hereunder as a result of stock
splits, stock dividends or similar transactions. In no event
will the aggregate maximum offering price of all securities issued
pursuant to this registration statement exceed
$27,966.
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(2)
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Estimated
solely for the purpose of calculating the amount of the registration fee.
The proposed maximum offering price per unit will be determined from time
to time by the registrant in connection with the issuance by the
registrant of the securities registered
hereunder.
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(3)
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Calculated
pursuant to Rule 457(o).
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2
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(4)
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Includes
common stock purchase rights which are attached to, and trade and transfer
with, the common stock. Prior to the occurrence of certain events, such
rights will not be exercisable or evidenced separately from the common
stock.
|
3
EXPLANATORY
NOTE AND INCORPORATION BY REFERENCE OF SELECTED INFORMATION
This
registration statement is being filed with respect to the registration pursuant
to Rule 462(b) under the Securities Act of 1933, as amended, of additional
shares of common stock, par value $0.01 per share, of Delcath Systems, Inc. and
warrants to purchase such common stock previously registered under an earlier
effective registration statement (No. 333-143280), the contents of which are
incorporated by reference into this registration statement.
The
required opinions and consents are listed on an Exhibit Index attached hereto
and filed herewith.
4
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies that
it has reasonable grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in New York, NY, on
June 3, 2009.
| DELCATH SYSTEMS, INC. | |||
|
|
By:
|
/s/ Richard L. Taney | |
| Richard L. Taney | |||
| Chief Executive Officer | |||
POWER
OF ATTORNEY
KNOW ALL
PERSONS BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Richard L. Taney, and each or any one of them, his or
her true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and to sign any and all additional
registration statements relating to the Registration Statement and filed
pursuant to Rule 462(b) of the Securities Act of 1933, as amended, and to file
the same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agent or his substitute or substitutes, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in connection therewith, as fully to all intents and purposes as he
or she might or could do in person, hereby ratifying and confirming all that
said attorney-in-fact and agent or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this registration statement
has been signed below by the following persons in the capacities and on the
dates indicated.
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Signature
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Title
|
Date
|
|
/s/
Richard L. Taney
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Chief
Executive Officer and Director
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June 3,
2009
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|
Richard
L. Taney
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(principal
executive officer)
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|
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/s/
Barbra Keck
|
Controller
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June 3,
2009
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|
Barbra
Keck
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(principal
financial and accounting
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|
|
officer)
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||
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/s/
Harold S. Koplewicz
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Chairman
of the Board
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June
3, 2009
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|
Harold
S. Koplewicz, M.D.
|
||
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/s/
Laura Philips
|
Director
|
June
3, 2009
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|
Laura
Philips, Ph.D.
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5
|
Signature
|
Title
|
Date
|
|
/s/
Eammonn Hobbs
|
Director
|
June
3, 2009
|
|
Eammonn
Hobbs
|
||
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/s/
Robert Ladd
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Director
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June
3, 2009
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|
Robert
Ladd
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||
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/s/
Pamela Contag
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Director
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June
3, 2009
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Pamela
Contag
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||
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/s/
Roger Stoll
|
Director
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June
3, 2009
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|
Roger
Stoll
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6
EXHIBIT
INDEX
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Exhibit
Number
|
Description
of the
Document
|
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5.1
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Opinion
of Hughes Hubbard & Reed LLP as to the legality of the securities
being registered.
|
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23.1
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Consent
of CCR LLP
|
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23.2
|
Consent
of Hughes Hubbard & Reed LLP (included in Exhibit
5.1).
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7
June 9,
2009
Delcath
Systems, Inc.
600 Fifth
Avenue, 23rd
Floor
New York,
NY 10020
|
|
Re:
|
Registration Statement
on Form S-3
|
Ladies
and Gentlemen:
We have
acted as counsel to Delcath Systems, Inc. (the “Company”) in
connection with your authorization of the proposed issuance of up to $27,966
aggregate offering price of (i) shares (the “Shares”) of common
stock, par value $0.01 per share (“Common Stock”), of
the Company, (ii) warrants (the “Warrants”) to
purchase shares of Common Stock and (iii) the shares of Common Stock issuable
upon exercise of the Warrants (the “Warrant Shares”) as
contemplated by the Registration Statement on Form S-3 covering such proposed
issuance (the “Registration
Statement”) initially filed with the Securities and Exchange Commission
under the Securities Act of 1933 (the “Act”) on or about the
date hereof
In
connection with the foregoing, we have examined: the Registration Statement and
originals, or copies certified or otherwise identified to our satisfaction, of
such other documents, records, instruments and certificates of public officials
as we have deemed necessary or appropriate to enable us to render this
opinion. In addition, we have assumed: (i) that all signatures are
genuine, (ii) that all documents submitted to us as originals are genuine, and
(iii) that all copies submitted to us conform to the originals.
Based
upon and subject to the foregoing, we are of the opinion that, when the
applicable provisions of the Act and such “Blue Sky” or other state securities
laws as may be applicable shall have been complied with:
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(a)
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the
Shares when delivered to the purchaser or purchasers thereof against
receipt by the Company of such lawful consideration therefor as the
Company’s Board of Directors (or a duly authorized committee thereof or a
duly authorized officer of the Company) may determine, and at a price per
share not less than the per share par value of the Common Stock, will be
legally issued, fully paid and
non-assessable;
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(b)
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the
Warrant Shares, when duly issued upon exercise of the Warrants in
accordance with the terms and provisions thereof, will be legally issued,
fully paid and non-assessable; and
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(c)
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the
Warrants when (a) duly executed, authenticated, issued and sold in
accordance with the Registration Statement and (b) delivered to the
purchaser or purchasers thereof against receipt by the Company of such
lawful consideration therefor as the Company’s Board of Directors (or a
duly authorized committee thereof or a duly authorized officer of the
Company) may determine will be legal, valid and binding obligations of the
Company;
|
subject
to (a) limitations imposed by bankruptcy, reorganization, moratorium,
insolvency, fraudulent conveyance, fraudulent transfer, preferential transfer
and other laws of general application relating to or affecting the
enforceability of creditors’ rights and to general principles of equity,
including, without limitation, reasonableness, good faith and fair dealing, and
considerations of impracticability or impossibility or performance and defenses
based upon unconscionability (regardless of whether such
enforceability
is considered or applied in a proceeding in equity or at law) and (b) the
qualifications that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may be
brought.
We are
members of the bar of the State of New York and the opinion set forth below is
restricted to matters controlled by federal laws, the laws of the State of New
York and the General Corporation Law and Constitution of the State of
Delaware.
We hereby
consent to the use of our name under the caption “Legal Matters” in the
prospectus constituting a part of the Registration Statement and to the filing
of this opinion as an exhibit to the Registration Statement. In
giving this consent, we do not thereby admit that we are within the category of
persons whose consent is required under Section 7 of the Act, the rules and
regulations of the Securities and Exchange Commission promulgated thereunder, or
Item 509 of Regulation S-K promulgated under the Act.
This
opinion letter is rendered as of the date first written above, and we disclaim
any obligation to advise you of facts, circumstances, events or developments
which hereafter may be brought to our attention and which may alter, affect or
modify the opinion expressed herein.
Very
truly yours,
/s/
Hughes Hubbard & Reed LLP
CONSENT
OF REGISTERED INDEPENDENT PUBLIC ACCOUNTING FIRM
We
consent to the use of our report dated February 27, 2009, relating to the
balance sheets of Delcath Systems, Inc. (the “Company”) as of December 31, 2008
and 2007, and the related statements of operations, other comprehensive loss,
stockholders’ equity, and cash flows for each of the years in the three year
period ended December 31, 2008, and cumulative from inception (August 5, 1988)
to December 31, 2008 (which report expressed an unqualified opinion), relating
to the financial statement schedule and relating to the Company’s internal
control over financial reporting as of December 31, 2008, included in the
Company’s Annual report on Form 10-K for the fiscal year ended December 31, 2008
and incorporated by reference herein and to the reference to our firm under the
heading "Experts" in the prospectus.
/s/ CCR
LLP
Glastonbury,
CT
June 8,
2009